자본시장법상 역외적용규정의 준거법 결정기준으로서의 기능에 대한 검토 - 국제증권발행에서 투자설명서 부실표시책임의 준거법을 소재로 삼아 -

초록

When securities are offered to the public, a prospectus drawn up by an issuer should be distributed mainly by underwriters to investors in order for them to know the potential investment risks. Each country has its own capital markets law regulating a prospectus by way of promulgating administrative regulations, criminal punishment and civil liability to enforce a prospectus with accurate information to be drawn up and distributed so that investors are provided with accurate information on the issuer and the securities in question. In a case where an issuer is a foreign company and/or the market where securities are offered to the public is a foreign capital market, it is not certain whether the prospectus liability clause in the Korean capital markets law should be applied to those cases and which law should govern those cases. If a securities offering has foreign element(s), the applicable law on prospectus liability should be determined by the choice-of-law rules, irrespective of the extraterritorial application clause (Article 2) in the Korean capital markets law. Article 2 of the Korean capital markets law makes different roles respectively in civil liability, criminal responsibility and administrative restriction.

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